How a prosecutor, and a nation, changed course
Back in 1994, Harris County prosecutor Elsa Alcala won a death sentence against Houston’s Gerald Eldridge, accused of murdering his wife and daughter. After the trial, her boss, storied District Attorney Johnny Holmes, gave her a little gift. “Congratulations, killer,” he said as he handed over a novelty pen made to look like a small plastic syringe.
Many years later, after serving as a prosecutor and a judge on Texas’ highest criminal court, Alcala began to change her mind about the death penalty. She didn’t have a come-to-Jesus moment. Her transformation was gradual. Over a long period of time she saw too many incompetent defense attorneys, too much racial discrimination, too much miscarriage of justice. She came to see the flaws in the system, and she could no longer abide with those flaws.
My intention is not to laud Alcala, and it’s certainly not to condemn her. It is to suggest that, once you move beyond moral certitude, societal change in belief toward capital punishment has been not sudden but incremental, not moral so much as practical. This is particularly true in Texas, known as the death penalty capital of the world.
All of this falls in line with a new book by Maurice Chammah, “Let the Lord Sort Them: The
Rise and Fall of the Death Penalty” (Crown, $28). Chammah, a journalist for the nonprofit Marshall Project, zeroes in on individuals — victims’ families, criminals, lawyers, activists, judges, prison guards, chaplains — and allows
them to tell a story with a great many moving parts. The book uses humanity to dig deep into policy.
“I chose very deliberately to not make an argument for the death penalty’s abolition,” says Chammah by phone. “I felt that, as a reporter and journalist, I wanted to show the system rather than write a polemic and make arguments against it. But I think that, over time, I’ve seen an incredible array of reasons why the death penalty has been questioned.”
Some of these reasons are financial. The capital punishment system costs a lot of money. Some of them are moral. (For what it’s worth, this is where I fall. Eye-foran-eye justice has never made sense to me, and I find it barbaric for the state to commit murder. Then again, no one I love has been the victim of a violent crime.)
Some, conservative and liberal, see capital punishment as a government overreach. Some believe in the possibility and power of rehabilitation. Some point to the inherent racism of the capital punishment system. “I was seeing a lot of Black and brown people on death row,” Alcala says by phone, “and for crimes that just weren’t as serious as crimes that other people were getting life sentences for, who weren’t people of color. Anytime you do any kind of detailed analysis of the death penalty, you realize it has been misused throughout history primarily against people of color.” She says that 70 percent of those on Texas death row are people of color.
Chammah’s story of capital punishment’s rise begins in 1972, when the Supreme Court shut down the death penalty on the federal level. The ruling sent individual states, including Texas, scrambling to rewrite their own death penalty laws. Eventually every state that wanted to have the death penalty came up with a law that the Supreme Court would allow. After four years, in 1976, the Supreme Court reinstated the death penalty under a “model of guided discretion.” During those four years, 37 states, including Texas, enacted their own new death penalty laws.
From there it grew in stages. A big step came in 1994 when President Bill Clinton signed the Violent Crime Control and Law Enforcement Act, expanding the federal death penalty. At the state level, Texas, Oklahoma and Virginia continued to kill at a rapid clip, with Houston leading the way in Texas. According to Chammah, by 2001, with the death penalty surging at the state level, Harris County was responsible for 10 percent of all executions nationwide. Big stories came out of the city, including that of Karla Faye Tucker, convicted of murdering two people with a pickaxe in 1983.
“Houston has tremendous symbolism in the death penalty context,” Chammah says. “It was the epicenter of the death penalty in Texas, which was itself the epicenter of the death penalty in the country.”
As Chammah writes, of the roughly 1,500 executions that Americans have carried out since the 1970s, Texas has been responsible for more than 500. Part of that is due to the state’s early development of a lethal injection system. Part is due to the state’s conservative judicial ranks. And part is a sense of retribution that runs throughout the culture of the state.
Yet, recent years have seen a slow but steady fall in the use of the death penalty. The 2005 passage of a state law allowing life without parole sentences gave juries what they may consider a humane option. Alcala has witnessed it firsthand as she’s changed her own outlook on capital punishment.
As a prosecutor she would see a small enough sample size of death penalty cases to convince her she was seeing, as she says, “the worst of the worst” criminals. But when she started her tenure with the Texas Court of Criminal Appeals, in 2011, she got a broader view, and she began to see massive systemic problems with the state’s application of capital punishment.
She came to see it was rife with human error, and unreliable. She became more familiar with the financial costs, especially for small counties, which can be bankrupted by the trials and executions. She saw those racial disparities.
And she saw no benefit to society.
“There’s zero benefit other than revenge,” she says now. “We’re really mad at this person and it’s a revenge killing. But we should be better than revenge.”
Chammah says the pendulum is clearly swinging the other way. According to the Washington Post, lawmakers in Virginia, which has executed 113 people since 1976 (second only to Texas), last week passed two bills to abolish the death penalty.
Alcala went on to become a lobbyist for death penalty reform. She now firmly believes in abolition. She has moral reasons, but for her that’s not enough. Alcala’s reasoning is more practical.
Is capital punishment barbaric? Some would argue so. It’s also bad policy. And that’s why it is on the way out.